SS (Naturalisation: Substantive) 2018 UKSIAC SN 42 2015 (13 December 2018)

Posted by Admin on June 14, 2019

This was an appeal before Upper Tribunal (Special Immigration Appeal Commission) on 14/11/2018 and concerning an application for review of the decision by the Secretary of State for the Home Department (SSHD) to refuse the claimant’s application for naturalisation as a British citizen due to his failure to demonstrate he was of good character.

Facts and chronology

The Claimant (SS) was an Iraqi national and applied for asylum when he entered the UK on 9/02/01. His asylum application was initially refused on 13/03/01, however following a successful appeal he was granted refugee status and indefinite leave to remain on 23/10/02.

SS applied for naturalisation as a British citizen on 24/05/06 with no criminal convictions in the UK and no suggestions of any convictions elsewhere. SS had, in fact, been arrested on 15/12/04 on the grounds of money laundering, however, no charge was made due to lack of sufficient evidence.

In a letter dated 3/10/08, SS’s application for naturalisation was refused as follows:

“Your application for British citizenship has been refused on the grounds that the Home Secretary is not satisfied that you can meet the requirements to be of good character. It would pose a risk of damage to national security to give reasons in this case’.

Grounds of challenge

The Claimant’s grounds of challenge permitted to be known (open grounds) were as follows:

1. It was unreasonable of the SSHD to refuse to interview SS before rejecting his application as this would have allowed her to adequately evaluate his character
2. It was unreasonable for the SSHD to refuse SS’s application because he had been arrested when he had been released without charge
3. The process followed by the SSHD was unfair and not in accordance with her own policy to the extent that SS was not informed with information about the refusal reasons and should have been interviewed in accordance with the policy applied at the time.

Question of Law

The question for the Tribunal was whether SSHD’s decision to refuse naturalisation was justified given the factual information presented to her.

The Law

An applicant for British citizenship is required to demonstrate good character as stated in the British Nationality Act 1981. The burden for doing this rests on the applicant and the SSHD may impose a high standard as confirmed through case law Fayed (No 2) [2001] Imm A.R. 134.

Although the SSHD must act fairly in the assessment process by informing the applicant of any areas of concern relevant to his application, she is not required to do so where this would pose a threat to national security. Also, in such cases, neither the applicant nor the special advocates representing their interests are informed of the nature of any concern before the refusal is decided.

Should an applicant wish to challenge the decision to refuse, the proper approach of the Commission to the statutory review is set out in principles found within the judgement of AHK v SSHD SN/2/2014, SN/3/2014, SN/4/2014 and SN/5/2014 as follows:

1. The task of the Commission is to review the facts and consider whether the findings of the decision-maker are reasonable.
2. The Commission does not need to determine the veracity of the facts.
3. If the factual conclusions of the decision-maker are reasonable the Commission may then review the judgements made in light of the facts.
4. The challenge to the decision is only open on grounds of rationality; and even if it engaged ECHR rights, the exercise is of proportionality and not merits-based review.

Reasoning of the Commission

Since SS’s application was refused on grounds related to national security, the ‘open’ grounds of challenge which SS relied on were of little relevance. The arrest was not a reason for refusal and failure to disclose would not have posed any national security risk.

An applicant was not entitled to be informed of the nature of any concerns about his character, let alone to be interviewed about them, where to do so would pose a risk to national security. The reasons for refusal were explained in the ‘closed’ procedure before the Commission.

The Tribunal applied the principles set out in AHK to the ‘closed’ grounds of appeal and concluded that the factual basis for the SSHD’s decision was unsustainable. The judgment she exercised, based on her mistake, was irrational.

Conclusion

The Claimant’s claim was successful and SSHD’s refusal of SS’s naturalisation application was quashed. The Commission ordered the SSHD to reconsider the application giving SS reasonable time to make representations to her.